Back in September 2023, the American Association for the Advancement of Science (AAAS), with its Center for Scientific Responsibility and Justice, sponsored a two day meeting on Scientific Evidence and the Courts. If there were notices for this conference, I missed them. The meeting presentations are now available online. Judging from camera views of the audience, the conference did not appear to be well attended. Most of the material was forgettable, but some of the presentations are worth watching.
Jennifer L. Mnookin opened the conference with a keynote presentation on “Where Law and Science Meet.” Chancellor Mnookin presented a broad overview and some interesting insights on the development of the evidence law of expert witness testimony.
Following Mnookin, Professors Ronald Allen and Andrew Jurs presented on the “Unintended Impacts [sic] of the Daubert Standard.” The conference took place only a few months before amendment to Rule 702 became effective, and the reference to a “Daubert” standard was untoward. Allen’s comments followed the path of his previous articles. Jurs presented some empirical legal research, which seemed flawed for its assumption that the Frye standard was universally applied in federal court before the advent of Daubert. Assessing whether these standards lead to different outcomes when both standards have been applied heterogeneously, and one standard, Frye, is often not applied at all, and Daubert is often flyblown by judges hostile to the gatekeeping enterprise, Jurs’ empirical research seemed both invalid and very much beside the point. Both presenters missed the key point of Daubert, in which case plaintiff’s counsel advocated for no standard at all, beyond basic subject-matter qualification, for giving expert opinions in court.
A Session on “An International Perspective,” Scott Carlson discussed the efforts of the American Bar Association (ABA), and its Center of Global Programs, on supporting judges in foreign countries. Prateek Sibal discussed the history and work of the UNESCO Global Judges Initiative. My sincere wish is that the ABA would support judges more in the United States.
Panelists Valerie P. Hans, Emily Murphy, and Dr. Michael J. Saks presented on various jury issues, in a session “In the Minds of the Jury.” The presentations on how foreign countries process expert witness testimony were lacking any mention of how juries rarely if ever sit in civil cases that involve complex technical and scientific issues.
Two editors of scientific journals, Adriana Bankston and Valda Vinson, along with law professor Michael Sakes, spoke about peer review and publication, in a session “As a Matter of Fact: ‘General Acceptance’ in Emerging vs. Established Science.” Their discussion on the publication process shed very little light on how courts and juries should assess the validity of specific papers, particularly in view of the lax practices at many journals. Towards the end of this session, a question from the audience proved to be very revealing of the prejudices of the law professor on the panel. The questioner rose to complain that after beginning research on a topic that has litigation relevance her research is now frequently questioned. She asked the panel how she might deal with the annoyance of being questioned. Some on the panel basically urged her to buck up, but the law professor invoked the spirit of agnothologist, and lawsuit industry expert witness, David Michael, to suggest that “manufacturing doubt” was just a corporate tactic in the face of scientific evidence. The prejudice against corporate speech is remarkable when the lawsuit industry has a long history of playing the ad hominem game in advancing its pecuniary interests.
The session that followed addressed how trustworthy science might best be put before courts. The organizers described this session, Utilizing Scientific and Technical Expertise, as going to the heart of the issues targeted by the conference. Joe S. Cecil, Deanne M. Ottaviano, and Shari Seidman Diamond discussed how scientific expertise enters into the evidentiary record in American courtrooms. Their presentations were interesting, but curiously no one mentioned that the primary avenue for expert witness opinion is through oral testimony!
Joe Cecil discussed methods judges have to obtain scientific and technical evidence to advance justice. (By this I hope he meant the truth, and not just the outcome preferred by social justice warriors.) As noted, Joe Cecil did not focus on the ordinary methods of direct and cross-examination of party expert witnesses, but rather, he identified other methods of introducing expertise into the courtroom for the benefit of the judge or the jury. Only one suggestion really affects jury comprehension, namely the appointment of non-party expert witnesses by the court. The other methods really only provide expertise to the trial judge, who perhaps is challenged to make a ruling under Federal Rule of Evidence 702. The federal courts have the inherent supervisory power to appoint technical advisors to act as special law clerks on issues. Similarly, appointed special masters can address technical implementation issues, subject to the district judges’ control. The judges are always free to read outside the briefs and testimony, but there are ethical and notice issues for such conduct. The Reference Manual on Scientific Evidence (RMSE) sits on the shelves on every federal judge’s bookshelf, even if in pristine, unused condition. Judges can at least read the RMSE on specific issues without having to disclose their extra-curricular research to the parties. Of course, parties are well advised to consider any materials in the RMSE, which support or oppose their contentions.
In discussing the RMSE, Cecil noted that the fourth edition was in the works. He also mentioned that all the old chapter topics would be carried forward to the fourth edition, and that new topics would include eyewitness identification, computer science, artificial intelligence, and climate science. Sadly, there will be no chapter on genetic determination of disease, but perhaps the clinical medicine chapter will take on the subject in greater detail than previous editions. This conference took place two years ago, and yet the RMSE, fourth edition, is still not published. The National Academies website previously listed the project as completed, but the site now describes the work as “in progress.”
Joe Cecil’s analysis of the various extraordinary expert techniques was pretty much spot on, especially his assessment that “experiments” with court-appointed experts were often failures or at best modest successes. The discussion of Judge Pointer’s Rule 706 independent expert witnesses in the silicon [sic] breast implant litigation, MDL926, seemed to lack context. Cecil acknowledged that the court’s expert witnesses contributed some value to admissibility decisions, but Judge Pointer notoriously did not believe that he, as the MDL judge, had any responsibility for Rule 702 determinations, and he made none except in cases that he tried in the Northern District of Alabama. (And these decisions were before the Science Panel was appointed.) So the Rule 706 witnesses really could not have aided in admissibility decisions.
The real value – in my view – of the Science Panel was that it demonstrated that Judge Pointer was quite wrong in believing that both sides’ expert witnesses were simply “too extreme,” or too partisan, and that the truth was somehow in the middle. Indeed, Judge Pointer said so on many occasions, and he was judicially gobsmacked when all four of his experts roundly rejected the plaintiffs’ distortions of the science of immunology, epidemiology, toxicology, and rheumatology. The courts’ expert witnesses sat for discovery depositions, and then gave testimony de bene esse. To my knowledge, their testimony was never admitted in any of the subsequent trials.
Judge Jed Rakoff gave an interesting presentation, “Strengthening Cooperation Between the Scientific Enterprise and the Justice System,” on the intersection between scientific and legal expertise and the need for their better integration. Judge Rakoff focused on the astonishing lack of compliance of trial judges with the gatekeeping requirements of Rule 702 in addressing the admissibility of forensic evidence. Several subsequent panels also addressed forensic topics, including “A Texas Case Study in Accountability for Forensic Sciences,” “Innovations in Investigative Technologies Improvements and Drawbacks,” and “Artificial Intelligence and the Courts,” “Wrongful Convictions and Changed Science: Statutes,” and “Standing Up for Justice: When the Law and Science Work Hand-in-Hand.”
One of the more curious sessions was on “Statistical Modeling and Causation Science,” presented by the American Statistical Association along with the AAAS. Maria Cuellar, from the University of Pennsylvania, discussed the role of statistical thinking in causal assessment, with slides that referred to a nonparametric estimator for the probability of causation. Cuellar, however, never defined what an estimator was; nor did she differentiate nonparametric from parametric estimators. She displayed other equations, again without explaining their origin and meaning, or identifying symbols or meanings. Similarly, Rochelle E. Tractenberg, discussed the use of statistics as evidence and as part of inferring causal inference in litigation, in a model of unclarity. At one point, Tractenberg appeared to suggest that general causation could be taken from regulatory pronouncements. Her discussion of glyphosate implied that general causation was established, which may have led me to disregard her presentation.
Finally, the conference sported a discussion, “Toxic Tort 2.0: Emerging Trends in Climate Change Related Litigation,” The two presenters were Dr. L. Delta Merner, the “Lead Scientist” for the Science Hub for Climate Litigation, Union of Concerned Scientists, and Dr. Paul A. Hanle, Visiting Scholar and Founder of the Climate Judiciary Project, Environmental Law Institute. The Science Hub actively promotes climate change litigation, which made me wonder whether its scientists are involved in that new chapter in the upcoming fourth edition of the Reference Manual.
